Author Archives: Doug Mataconis

You may remember Wayne Allyn Root as the sports betting “expert” cum political commentator who ended up being Bob Barr’s running mate on the 2008 Libertarian Party Presidential ticket. In 2010 he was elected to a position on the Libertarian National Committee and, while many had figured he’d be running for the Presidential nomination this year, he doesn’t appear to be doing so.

Perhaps that’s because he’s decided that Libertarians need to vote for Mitt Romney.

Yes, you heard that right, a member of the Libertarian Party’s governing body said on the Cinncinnati-based Bill Cunningham show [Podcast here] that he’s supporting Mitt Romney and so should other libertarians:

I think the important thing now is to make sure Obama is not elected,and that means in my mind, I would love for a libertarian like Gary Johnson the two term governor of New Mexico would actually get elected President, but I think we all know that’s not going to happen so therefore it’s got to be Romney there is no choice.

I said in a perfect world I’d like to see Gary Johnson elected President, he’d be the best choice out there…I also said several times on the call that Mitt Romney is a big spending, big government Northeast liberal…that he will make very little difference because of this…

And that the difference between Obama and Romney…

Is that Romney will slow down our path off a cliff just a bit…and Obama will take us off the cliff in a matter of minutes.

But neither is good enough to save USA from long decline towards mediocrity.

And that Romney’s victory will most probably prove that neither party can change our problems enough to save the economy…so hopefully it will lead to a serious Libertarian third party threat in 2016…of which I plan to be the Presidential candidate.

That’s what I said. It’s on tape. Sorry folks but you can’t take things out of context.

Nobody’s taking anything out of context Wayne. In fact, I think your comment at IPR makes it fully clear what this is really all about. Since you can’t be the LP nominee in 2012 you apparently have no problem with throwing the guy who most likely will be the nominee under the bus, clinging on to the theory that you’re going to somehow be the nominee in 2016. What happened to that promise in your book that you were going to be the LP nominee in 2012, 2016, and then win the White House in 2020?

Root has every right to his opinion, of course, what he doesn’t have the right to do is trash the party he’s purporting to represent for his own personal interests. If he wants to endorse and vote for Mitt Romney in 2012, that’s his choice. I think it’s a stupid one, but people have the right to make stupid choices. What I don’t understand is how he can continue holding a position of supposed responsibility in the Libertarian Party while endorsing a Republican instead of his own party’s nominee, and I’m not even a member of the LP. The point isn’t that Root doesn’t have a right to endorse Romney, but that it’s an insult to the party he claims to represent that he does so while sitting on the party’s National Committee.

Earlier this week, Brad Warbiany started out the latest in our occasional series of Point-Counterpoint exchanges by arguing that the Supreme Court will ultimately uphold the Constitutionality of the Patient Protection And Affordable Care Act’s individual mandate. I’ll start off by saying that this is not an all implausible. Indeed, I’ve argued myself in the past that the odds were quite good that the Supreme Court would uphold the constitutionality of the mandate. Moreover, as Brad notes, the history of the Supreme Court’s Commerce Clause jurisprudence has been one where the Court has essentially been nearly completely deferential to Congressional exercises of authority in this area. If one were making a bet, the safe bet would be the one that says the mandate would be upheld. Nonetheless, as I argue below I believe that the Supreme Court will in the end strike down the mandate, although the fate of the rest of the PPACA remains far from certain.

The Mandate Forces Citizens To Act In A Manner Never Before Seen In American History

Brad argues against the assertion that the mandate is unique in American history because it forces citizens to purchase a product from a private seller by pointing to examples of other things that the government forces people to do, such as the military draft and jury service. It’s correct that these programs are, at least theoretically, authorized by various provisions of Article I, Section 8. However, that’s very different from what the mandate purports to set in place, which is a requirement that every person in the United States engage in a specific commercial transaction whether they choose to or not. As more than one legal commentator has noted, this is unprecedented in American history and likely one of the main reasons that the PPACA itself has aroused the ire of such a large segment of the American public. As a general rule, Americans don’t like being told what to do by the government and, for many people, this was a bridge too far.

The question is whether it is authorized under the Constitution, and I think the case in favor of it is far stronger than the supporters of the law have been willing to admit up until last week’s hearings.

The Commerce Clause

As I noted above, the Supreme Court has, at least since the New Deal Era, been very deferential to Congressional assertions of authority under the Commerce Clause. This started, as Brad notes, with the case of Wickard v. Filburn in which the Court upheld a provision of the Agricultural Adjustment Act that allowed Federal authorities to bar a farmer from growing “excess” wheat even though he would not be selling it and would solely be using it for personal use on his farm. The Court reasoned that this was acceptable because the farmer’s actions had an impact on Interstate Commerce, even though it might only be a small one. It’s a decision that has always aroused the ire of advocates of limited government and it’s implications are wide ranging. Thanks to Wickard, the Court spent some 50 years rubber stamping Federal assertions of authority under the Commerce Clause. Indeed, after the New Deal Era there were very few challenges to such laws that even made it to the Supreme Court.

Then, in the late 90s things took a surprising change. In Morrison v. United States, the Court struck down several provisions of the Violence Against Women Act which purported to make domestic violence a matter for federal law enforcement under certain circumstances. The Court held that there was no evidence that domestic violence had any connection at all to interstate commerce that would justify giving the Feds police authority that is properly the authority of state governments. Several years later, in Lopez v. United States, the Court struck down the Gun Free School Zones Act on the ground that there was not a sufficient nexus with interstate commerce. Suddenly, it seemed, the Court was finding limits to the Commerce power. There seemed to be a setback when the Court upheld Federal drug charges against a California medical marijuana dealer in Gonalez v. Raich, but there’s a good argument to be made that this case is distinguishable based on the fact that it dealt with illegal drugs and that the Court was unwilling to issue a ruling that would have thrown every single Federal drug law into Constitutional doubt. Had Gonzalez dealt with any other commodity, it’s quite conceivable that it would have gone the other way.

It’s been said by PPACA advocates that striking down the mandate would require the Court to overrule 70 years of Commerce Clause precedent, but Morrison, Lopez and even Raich, show that this isn’t necessarily true. Each of the courts that have struck down the mandate have held that the problem with the mandate isn’t that the Courts have been wrong for the past three-quarters of a century about the Commerce Clause, but that even those precedents do not authorize what Congress wishes to do in this particular case. Indeed, it is perfectly easy to distinguish Wickard and its progeny from the PPACA mandate in a way that preserves precedent and yet compels the conclusion that the mandate is a Constitutional bridge too far.

This is what I expect the Supreme Court to do when it issues its opinion in June. Much to the relief of liberals and the chagrin of conservatives, striking down the individual mandate will not mean that the New Deal will be rolled back. What it will mean, though, is that, as in Lopez and Morrison, the Court will be drawing a line and saying that Congress cannot cross it because it does not have the Constitutional authority to do so. It will, in other words, further articulate a limiting principle for the Commerce Clause.

Which brings me to the next part of Brad’s argument I need to address.

Limiting Principles

Brad is correct that the Court could construct a limiting principle if it ends up saying that the mandate is Constitutional. Perhaps this is what it will end up doing. However, it is worth understanding the importance of the failure of the Government to articulate a limiting principle when asked for one by the Court. For one thing, this isn’t the first time that the Court has failed to do so. Reviewing the transcripts of oral argument in many of the lower court proceedings, one runs into other occasions when Judges inquired of the attorneys for the Government whether they believed that there was any limit on the Commerce Power given their arguments in favor of the mandate. In no case were the attorneys willing or able to do so. In some cases, this was cited by Judges as a reason that the mandate cannot be upheld, in others it wasn’t (athough it is worth noting that lower Court judges are bound by precedent from the Supreme Court in a manner that Supreme Court Justices are not).

As a purely tactical matter, it strikes me that an attorney who is unable to provide an answer when a Judge asks “If I rule in your favor, what guarantee is there that I won’t be establishing a precedent to do X” is potentially damaging their case. Most judges are not, by their nature, radicals.Meaning that if they can avoid issuing an opinion that could have far reaching consequences they are likely to do so. It was quite evident from the questioning during last week’s oral argument over the individual mandate that the Court, and specifically Justice Kennedy, has some concerns about the future implications of issuing an opinion upholding the mandate. The Solicitor General’s failure to provide an answer may end up being fatal to the Government’s case.

The Necessary And Proper Clause

This is perhaps the strongest argument that Brad raises. Under the broadest interpretation of the Supreme Court precedents on this case, anything that is necessary for Congress to carry out one of it’s authorized powers is Constitutional. Indeed, this is pretty much what the Supreme Court said when it authorized the creation of the First Bank Of The United States in McCullough v. Maryland. For that reason alone, it’s interesting that there was so little discussion of the necessary and proper clause during the oral argument last week. Partly, this may be because the law here is pretty much settled and has been for nearly two centuries but one would have thought that Paul Clement, the attorney for the states would have been subjected to some strong questioning on this topic by the Justices on this issue. He really wasn’t, although there was some discussion about whether the health care market was “unique” in some way that made this mandate permissible.

The problem with this argument that it still leaves the Court searching for a limiting principle. If Congressional power under the Commerce Clause to regulate the interstate health care/health insurance market is so broad that it can enact a law that includes a requirement that all Americans purchase insurance, then does that mean that its power to regulate the interstate automobile market is so broad that it can enact a law requiring Americans to buy only American made cars? Even if the Court were to decide that the Necessary and Proper Clause was sufficient authorization for the mandate, it would still be left with the limiting principle question. And my reading of the Court at this time is that there is a majority right now that is unwilling to issue an opinion that would essentially be an open door to Congressional intrusion in even more aspects of the economy, and an end to any hope that there could be limits imposed on Washington, D.C.

Conclusion

I could end up being totally wrong about this, of course. This case is so closely dividing the Court that it’s impossible to guess how it will turn out. I will say that I think that if the mandate is struck down we are looking at a 5-4 decision because there is just no way that I can see Breyer, Ginsburg, Sotomayor, or Kagan going over to the side of the conservatives on this issue. However, if the mandate is upheld I would not be surprised to see it be a 6-3 decision for a very specific reason. Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

However, if the Court were to strike down the mandate, I believe I’ve laid out a perfectly rational, Constitutional basis on which they would do so. That doesn’t mean there won’t be a political firestorm, of course, but there is going to be a political firestorm no matter how the Court rules. I don’t think there’s ever been a time in American history when such an important case was in the hands of the Court in the same year as a Presidential election. Especially an election where the very issue the Court is dealing with, the limitations on the authority of the state contained in the Constitution, were also the central issue in the Presidential election. It’s going to be a very interesting opinion regardless of which way it comes down.

Gary Johnson, the Republican presidential candidate who has labored in obscurity, is about to get his moment in the spotlight—for one night, at least.

Johnson will be included in Thursday’s Fox News debate in Orlando, the first time he will share a stage with his eight rivals—over the objections of the Florida Republican Party.

The former New Mexico governor won the right to participate, according to Fox sources, by cracking 1 percent in the latest five national polls in which he was included—Fox News, CNN, McClatchy-Marist, ABC, and Quinnipiac—which was the criterion the network had set for inclusion.

Johnson is a quirky character, a libertarian who wants to legalize marijuana and is opposed to a border fence to stop illegal immigration. But he has attracted a passionate if tiny following while mostly flying below the media’s radar.

With nine people on the stage tomorrow night, it will be hard for Johnson to get a lot of air time in, especially since the debate moderators are likely to repeat the practice we’ve seen in the past two debates of concentrating mostly on Rick Perry and Mitt Romney, who are far ahead of the rest of the field at the moment. Nonetheless, it’s an opportunity for Johnson, who has as much Executive experience as Jon Huntsman and more than Mitt Romney, to introduce himself to voters, and he’ll provide an interesting contrast to Ron Paul on the libertarian side.

Byron York, in the game of reporting about right-wing and Republican politics for a very long time, delivers a bravura performance of ignoring what’s in front of his own eyes with this nearly 2,000 word account of last night’s GOP debate that pretty much pretends Ron Paul and Gary Johnson weren’t even there.

York literally mentions that Paul was there–and never mentions yesterday’s million-dollar man again. Johnson gets cred for sprinting on the stage, where apparently from York’s account he then fell through a trap door and never added anything to the very, very fascinating set of fresh ideas delivered by those other three guys, I’ve forgotten their names.

Expect to have to see a lot more of this transparently pathetic pretending that Paul and Johnson don’t exist

York’s not alone. A listener to Rush Limbaugh’s show today would’ve been led to think that the only people at last night’s debate were Herman Cain, Tim Pawlenty, and Rick Santorum, because the great “El Rushbo” didn’t even talk about Johnson or Paul (yea, I know, I shouldn’t be listening). And a review of many of the prominent conservative blogs today shows either the same “memory holing” of Paul and Johnson, or coverage that consists of nothing but derision of them and their supporters.

To which I ask a simple question — if conservative Republicans want to convince libertarian-oriented folks to be allied with them, wouldn’t it be better to actually treat them and their ideas with respect? I’ve seen none of it, and I’m tempted to act accordingly.

Rep. Ron Paul, R-Texas, whose outspoken libertarian views and folksy style made him a cult hero during two previous presidential campaigns, will announce on Tuesday that he’s going to try a third time.

Sources close to Paul, who is in his 12th term in the House, said he will unveil an exploratory presidential committee, a key step in gearing up for a White House race. He will also unveil the campaign’s leadership team in Iowa, where the first votes of the presidential election will be cast in caucuses next year.

Paul, 75, ran as the Libertarian Party candidate in 1988, finishing with less than one half a percent of the vote. After more than a decade as a Republican congressman, Paul gave it another shot in the 2008 presidential election, gaining attention for being the only Republican candidate calling for the end to the war in Iraq and for his “money bomb” fundraising strategy, which brought in millions of dollars from online donors in single-day pushes.

Paul took 10 percent of the vote in the Iowa caucuses and 8 percent in New Hampshire’s primary. He finished second, with 14 percent of the vote, in the Nevada caucuses, and eventually finished fourth in the Republican nominating process with 5.6 percent of the total vote. Paul’s campaign book, The Revolution: A Manifesto also reached No. 1 on The New York Times best-seller list in 2008.

An exploratory committee is one step below an actual campaign, but it seems likely that Paul is running, at least for now. Personally, for the reasons I mentioned last week, I am inclined to support Gary Johnson rather than Congressman Paul, but the more the merrier.